There are few new judgments published at this time of year, but the other day the excellent site Bailii, which “provides access to the most comprehensive set of British and Irish primary legal materials that are available for free and in one place on the internet”, treated us to a slew of old House of Lords decisions. It didn’t take long for one to catch my eye.
Fowler v. Mackenzie is a case from 1874. It concerned an antenuptial contract between the groom and the father of the bride, whereby the bride’s father was to pay a sum of money to the groom. I’m not sure whether technically this was a dowry – the report doesn’t mention the word, instead talking of the father engaging to “provide to” the daughter and “settle” the money “on her children”, rather than giving the money to the groom, although the claimant in the case was seeking the return of the money from the groom. Whatever, I think the distinction, if there is one, is academic – this was effectively a dowry situation. I understand that dowries were quite common in Victorian times amongst the upper class, being viewed as an early payment of the daughter’s inheritance.
As is noted by Lord Selborne in his judgment, the facts of the case are remarkable for the periods of time involved. It all began in 1825 when Mr Fowler, who was blessed with four daughters (or was unfortunate enough to have four daughters, depending upon your point of view) entered into the contract with Mr Mackenzie, who was to marry his daughter Anna. By the contract he “engaged to provide to her, and settle on her children, a sum equal at least to that which would be provided to any other of his daughters”.
Move on two years, and another of the daughters, Isabella, was about to be married, coincidentally to another Mr Mackenzie. Her father desired to give £4,000 to Isabella, but he was reluctant to do so, because if he did so he would become bound to pay £4,000 also to Anna. Presumably, he could not afford to give £4,000 to both, although why he preferred Isabella, we are not told. Anyway, the problem was resolved by Anna’s husband writing a “confidential letter” to Mr Fowler in 1828, saying that he and his spouse would be content to receive £2,000, “and therefore leave to your own generosity and honourable feelings to put us on an equal footing if your fortune should admit of it”.
Mr Fowler died in 1842. In the following year his son and heir paid £4,000 to Anna’s husband in accordance with the contract and in ignorance of the letter, after Anna’s husband claimed that sum from the estate.
Fast forward another twenty-eight years to 1870 and the son finds the letter. He therefore issues a claim against Anna’s husband for repayment of the £2,000. (If the sums seem paltry, it should be noted that £2,000 in 1870 is equivalent to more than £200,000 now)
The son’s claim is initially successful and he is awarded £2,000, plus interest. However, Anna’s husband appealed that award and succeeded. The son then appealed to the House of Lords, which found in favour of Anna’s husband. The basis of the decision (as I read it) is that the contents of the letter had never been put into a formal and binding deed by Mr Fowler, and in any event by the time of his death the circumstances had changed, presumably because there was then enough money to pay £4,000 in respect of both marriages.
All very interesting, but you may think that this has got nothing to do with families in the UK in the twenty-first century. Isn’t this dispute just of historical interest? After all, dowries are surely a thing of the past, aren’t they?
Well, no.
The dowry is still very much alive and well in the UK today, particularly amongst Asian families. It is also quite capable of causing dispute, division, and even domestic violence. There have been many cases of women being abused in disputes over payment of the dowries. In fact, the problem is so bad that it has led to calls for dowries in this country to be banned, in much the same way as forced marriage has been banned.
I agree with those calls. As barrister Suki Johal, who is in favour of a ban, has said, women are not chattels – they are equals. The dowry has no place in a modern country and really should be something that belongs in a long-gone era.
The full report of Fowler v. Mackenzie can be found here.
You can make dowry agreements unenforceable by legal action but you cannot stop people making them or carrying them out; or excluding from the community those who break them. We can, should and do criminalise FGM; we should and must maintain the position that “marriages” in the UK without notice and registration are non-marriages without legal effect of any sort; but what you are suggesting just won’t work.